Reckless Conduct At Sacramento Nursing Facility Causes Woman’s Death, Part 4 of 4

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/personal injury case and its proceedings.)

Delaney v. Baker (1999) 20 Cal.4th 23, is cited extensively by Defendant. Unfortunately, it does not support Defendant. The decision specifically holds that medical malpractice and Elder Abuse are separate causes of action. After holding that the statute is ambiguous, the court held that “if the neglect is ‘reckless’ or done with ‘oppression, fraud or malice,'” then the action falls within the scope of section 15657 and as such cannot be considered simply “based on … professional negligence” within the meaning of section 15657.2. (Delaney at 28.) Plaintiff has pleaded that the failure to restrain and the failure to treat decedent in this matter was at least reckless.

The pleading standard has been met and defendants would have the court make a factual determination that the actions were not “reckless” at the pleading stage which is an improper request. Delaney is not a case that interprets the scope of pleadings. It is a decision that interprets the scope of the statute. It cannot be cited as setting forth pleading requirements as Defendant attempts in the Demurrer.

The result is relatively simple. Plaintiff is entitled to and does state a cause of action for Elder Abuse, whether the proof presented at trial is sufficient to take the damages outside of the scope of ordinary negligence (15610.57) and into the scope of enhanced damages (15657 and 15657.2) is a separate issue. However, Plaintiffs submit that sufficient facts have been plead to meet the pleading standards as to this damage issue.

Further, Defendant has constructed an argument out of whole cloth as it relates to punitive damages. Such damages are not demanded, and nothing in the Elder Abuse statutes or Delaney indicates that the pleading standards for punitive damages pursuant to C.C. ยง3294 and 3295 are incorporated into the Elder Abuse statute. The statements in the code are simple: if the finder of fact finds that there was abuse by clear and convincing evidence then the enhanced damages are available. Thus, one need only plead the abuse at the initial pleading stage as it would be a non-sequitur to plead the heightened damages as suggested by Defendant.

In fact, the recent case of Marron v. Superior Court (2003) 108 Cal.App.4th 1049 clearly sheds light on the argument which requires as it’s underpinning the interpretation that the enhanced damages are punitive. In Marron the Court of Appeal expressly held that the enhanced damages pursuant to 15657 are not punitive in nature for which the Real Party in Interest, Regents of the University of California, would have had immunity. If the damages are not punitive, then the pleading requirements for punitive damages need not be met.

CONCLUSIONS

For the foregoing reasons, it is submitted that the pleadings herein are more than sufficient. Plaintiff has plead an action for Elder Abuse effectively. Defendant has attempted to ignore the first 16 paragraphs of the Complaint which were incorporated in the Elder Abuse Cause of Action, have attempted to use a statutory interpretation decision as a pleading requirement decision, have attempted to massage enhanced damages into punitive damages when the courts have decided that they are not, and, as a result, is entitled to have the demurrer overruled.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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